HIGH COURT OF AUSTRALIA

Transcription

1 HIGH COURT OF AUSTRALIA GUMMOW ACJ, HEYDON, CRENNAN, KIEFEL AND BELL JJ MINISTER FOR IMMIGRATION AND CITIZENSHIP APPELLANT AND SZMDS & ANOR RESPONDENTS Minister for Immigration and Citizenship v SZMDS [2010] HCA May 2010 S193/ The appeal be allowed. ORDER 2. Orders 3, 4 and 5 made by the Federal Court of Australia on 10 March 2009 be set aside. 3. In place of those orders: (a) (b) the appeal to the Federal Court of Australia be dismissed; and Order 2 made by the Federal Magistrates Court of Australia on 8 July 2008 be set aside. 4. The appellant pay the reasonable costs of the first respondent of the appeal to this Court. On appeal from the Federal Court of Australia Representation S J Gageler SC Solicitor-General of the Commonwealth of Australia with G T Johnson for the appellant (instructed by DLA Phillips Fox Lawyers)

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3 T A Game SC with T Baw for the first respondent (instructed by Sarom Solicitors) Submitting appearance for the second respondent 2. Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

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5 1 GUMMOW ACJ AND KIEFEL J. A criterion for the issue of a protection visa under the Migration Act 1958 (Cth) ("the Act") is that the applicant be a non-citizen of Australia to whom the Minister "is satisfied" that Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Section 36(2)(a) of the Act so provides 1. If the Minister "is satisfied" that this and other criteria "have been satisfied" then the Minister "is to grant the visa"; if "not satisfied", then the visa must be refused (s 65(1)). 2 The term "satisfy" has various shades of meaning. Two of them are involved in the collocation presented by ss 36 and 65 of the Act. One is that the applicant for a protection visa answers or meets the requirement or condition that Australia has protection obligations to the applicant. The second is that the decision maker accepts or is content that the applicant answers or meets that requirement or condition. 3 Upon review by the Refugee Review Tribunal ("the RRT") of a refusal by the Minister (or the delegate of the Minister), the RRT exercises all the powers and discretions conferred by the Act upon the Minister (s 415(1)). 4 The reiteration in ss 36 and 65 of the Act of the term "satisfied" is significant for the issues on this appeal by the Minister from the decision of the Federal Court (Moore J) 2. The Federal Court allowed an appeal from the Federal Magistrates Court (Scarlett FM) 3 and quashed the decision of the RRT (the second respondent). Moore J held that the RRT had fallen into jurisdictional error because its determination that the first respondent was not a refugee was based on illogical or irrational findings or inferences of fact 4 and remitted the matter to the RRT to be heard and determined according to law. The RRT had affirmed the decision of a delegate of the Minister to refuse the grant of a protection visa to the first respondent. In this Court the RRT entered a submitting appearance. The avenue of judicial review 5 It is important for an understanding of the issues in this case to appreciate that it does not arise under one of the systems of review of administrative decisions which are established by laws of the Commonwealth and under which 1 The appropriate text of the Act appears in Reprint No (2009) 107 ALD [2008] FMCA (2009) 107 ALD 361 at

6 Gummow ACJ Kiefel J the grounds of review are not limited to those involving jurisdictional error. In particular, the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act") includes as grounds of review that the decision "involved an error of law" (s 5(1)(f)) and that there was no evidence or other material to justify the decision (ss 5(1)(h) and 5(3)). However, the ADJR Act does not apply to the class of decisions with which this case is concerned 5. 6 This was not always so. Important decisions of this Court, including Chan v Minister for Immigration and Ethnic Affairs 6 and Minister for Immigration and Ethnic Affairs v Wu Shan Liang 7, were given in appeals where the jurisdiction of the Federal Court was conferred by the ADJR Act. In these cases the grounds of review principally in contention were that the decision "involved an error of law" (ADJR Act, s 5(1)(f)) 8, or was so unreasonable that no reasonable person could have exercised the power (ss 5(1)(e) and 5(2)(g)) 9. The broader focus of the ADJR Act meant that on the one hand the Court was not concerned with the finding of jurisdictional facts and on the other there was an apprehension that an overbroad review of fact-finding would lead to impermissible "merits review". 7 As will appear, the only avenue of judicial review in the present case was that rooted in s 75(v) of the Constitution itself and that required jurisdictional error to quash the administrative decision in question. This is because the privative clause provision found in s 474 of the Act, as interpreted in Plaintiff S157/2002 v The Commonwealth 10, was ineffective to exclude judicial review by the Federal Magistrates Court and on appeal to the Federal Court on the ground of jurisdictional error. The facts 8 The first respondent is a citizen of Pakistan, born there in He is a Sunni Muslim. His first language is Urdu and he gave evidence before the RRT through an interpreter. On 3 July 2007 he arrived in Australia on a visitor visa valid for three months and on 16 August lodged his application for a protection 5 The exclusion is made by Sched 1, pars (da) and (db). 6 (1989) 169 CLR 379; [1989] HCA (1996) 185 CLR 259; [1996] HCA 6. 8 (1996) 185 CLR 259 at See (1989) 169 CLR 379 at 418, (2003) 211 CLR 476; [2003] HCA 2. 2.

7 Gummow ACJ Kiefel J visa. In that application he said that he sought a protection visa "on the basis of my [belief] and practice of homosexuality". 9 That application presented several issues respecting the Convention definition of refugee. One was whether the first respondent was a member of "a particular social group", another was whether, if so, he had a "well-founded fear" of persecution for reason of membership of that social group. There had to be both a state of mind, the fear of persecution, and a well-founded basis, in an objective sense, for that fear. 10 None of this is controversial and the RRT recognised the existence of these issues. The dispute concerns the manner in which the RRT dealt, or failed to deal, with them. 11 The RRT held that it did "not accept that the [first respondent] will engage in [homosexual activities] or intercourse in the future, and therefore [it did not accept] that he will face persecution due to his membership of a particular social group (being a homosexual), whether actual or perceived". The RRT concluded that there was no real chance that the first respondent would face persecution due to any Convention reason if he were to return to Pakistan now or in the reasonably foreseeable future. Accordingly, the RRT decided that it was satisfied that the first respondent did not satisfy the criterion for the issue of a protection visa. 12 In essence, the RRT appears to have accepted that male homosexuals in Pakistan comprised a particular social group 11, but to have rejected the claim of the first respondent to membership of that group and thus his claim of a well-founded fear of persecution. 13 The dispute concerns the adverse inferences which the RRT drew from its rejection of the account given by the first respondent of his personal history. These inferences led the RRT to the conclusion that he would not act in a certain way in the future and was not a member of the relevant social group. From this conclusion the RRT derived satisfaction that the first respondent was not a person to whom Australia owed protection obligations. 14 The account given by the first respondent of his personal history was summarised by Moore J as follows 12 : Cf Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; [2003] HCA (2009) 107 ALD 361 at 362.

8 Gummow ACJ Kiefel J 4. "In 1991 he married his wife, and had four children from that relationship. In 1995 he travelled from Pakistan to the United Arab Emirates (UAE) where he worked in a factory. He returned to Pakistan in He remained in Pakistan until 2004 when he returned to the UAE. He finally left the UAE in July 2007 when he travelled to Australia. During the period October 2005 to July 2007 he developed an attraction to members of the same sex. In July 2006 [while in the UAE] he commenced a homosexual relationship with a man called Mr R. By the end of 2006 they were living together. At some point the applicant and Mr R commenced a sexual relationship with a third person, Mr H. Mr R had earlier been in a sexual relationship with Mr H (who was Mr R's boss). The applicant travelled to the United Kingdom in October 2006, returning to the UAE in December While in the UK he did not apply for a protection visa. In January 2007 the applicant discovered that Mr H was addicted to illicit drugs and was having unprotected sex with others. In March 2007 the applicant spoke to Mr H about this matter and Mr H became very angry and the applicant was bashed and threatened. The applicant and Mr R ran away from Mr H and went into hiding. In May 2007 the applicant returned briefly to Pakistan, and left again in June 2007 to return to the UAE. Shortly after, he travelled to Australia." 15 As Moore J noted, it was central to the reasoning of the RRT that the first respondent was not a homosexual 13. Before turning to consider what his Honour held were the defects, fatal to the exercise by the RRT of its jurisdiction, in the inferential reasoning to that conclusion, something should be said of the importance for this case of the doctrine of jurisdictional error, and its constitutional under-pinning. It is the operation of that doctrine which marks this case off from those in which judicial review is attempted for alleged factual error not going to jurisdiction. Jurisdictional error 16 Of the distinction between jurisdictional and non-jurisdictional error in the setting of the Australian Constitution, Justice Selway, writing extrajudicially, said 14 : 13 (2009) 107 ALD 361 at "The Principle Behind Common Law Judicial Review of Administrative Action The Search continues" (2002) 30 Federal Law Review 217, at 234. See also the treatment of the review of legality of administrative action as appurtenant to the judicial branch of government by Mr Pat Keane QC "Judicial Power and the Limits (Footnote continues on next page)

9 Gummow ACJ Kiefel J 5. "Notwithstanding the difficulty, indeed often apparent artificiality, of the distinction, it is a distinction between errors that are authorised and errors that are not; between acts that are unauthorised by law and acts that are authorised. Such a distinction is inherent in any analysis based upon separation of powers principles." 17 In Plaintiff S157/ , Gaudron, McHugh, Gummow, Hayne and Kirby JJ said: "Because, as this Court has held, the constitutional writs of prohibition and mandamus are available only for jurisdictional error and because s 474 of the Act does not protect decisions involving jurisdictional error, s 474 does not, in that regard conflict with s 75(v) of the Constitution and, thus, is valid in its application to the proceedings which the plaintiff would initiate." 18 The constitutional jurisdiction has its origins in the control exercised by the English courts to prevent administrative authorities exceeding their authority or neglecting their duties. The execution of the laws made by the Parliament was seen as an aspect of the executive power 16. There was no distinct concept of public administration as developed in some civilian systems 17. In the English system the "jurisdictional fact" was an appropriate marker for the enforcement of legality; how much further the field for judicial review of administrative action extended remained a matter of debate. 19 It is in this setting that the statement of general principle by Brennan J in Attorney-General (NSW) v Quin 18 is to be understood. His Honour said: "The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the of Judicial Control", in Cane (ed), Centenary Essays for the High Court of Australia, (2004) 295 at (2003) 211 CLR 476 at 508 [83]. 16 Cf Constitution, s See Schwarze, European Administrative Law, (1992) at (1990) 170 CLR 1 at 35-36; [1990] HCA 21.

10 Gummow ACJ Kiefel J 6. court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone." 20 In his work Administrative Law, Professor Paul Craig describes jurisdictional facts as those relating to the existence of the power of a public body over the relevant area and continues 19 : "The statutory conditions thus laid down may be factual, legal or discretionary in nature. A classic factual precondition is that a person should be of a particular age to qualify for a benefit; a simple legal stipulation is provided by the meaning of the term employee; a discretionary precondition is where the statute provides that if a minister has reasonable grounds to believe that a person is a terrorist then he may be detained. Claims of factual error can arise in all three types of case. It might be argued that the agency simply got the applicant's age wrong because it confused the applicant with a different person. It might be claimed that the agency misapplied the legal meaning of the term employee to the facts of the applicant's case. It might be contended that the minister did not on the facts have sufficient material to sustain a reasonable ground for believing that the applicant was a terrorist." The criterion for attraction of the jurisdiction of the decision maker in deciding an application under the Act for a protection visa is not expressed in terms of "fact" as simply understood. Rather, as explained earlier in these reasons, the Act fixes upon a criterion of "satisfaction" as to the existence of a certain state of affairs respecting the status of the applicant. 21 In that regard, a statement of principle by Lord Wilberforce made in 1976, before the tectonic shifts in English public law which occurred in later decades, is of first importance. In Secretary of State for Education and Science v Tameside Metropolitan Borough Council 20, his Lordship said of a provision conditioning the power of the Secretary of State to act upon satisfaction as to a certain state of affairs: "The section is framed in a 'subjective' form if the Secretary of State 'is satisfied'. This form of section is quite well known, and at first sight might seem to exclude judicial review. Sections in this form may, no doubt, exclude judicial review on what is or has become a matter of 19 6th ed (2008) at [1977] AC 1014 at 1047.

11 Gummow ACJ Kiefel J 7. pure judgment. But I do not think that they go further than that. If a judgment requires, before it can be made, the existence of some facts, then, although the evaluation of those facts is for the Secretary of State alone, the court must inquire whether those facts exist, and have been taken into account, whether the judgment has been made upon a proper self-direction as to those facts, [and] whether the judgment has not been made upon other facts which ought not to have been taken into account." (emphasis added) 22 The essence of the case upon which the first respondent succeeded in the Federal Court was that in attaining the satisfaction required by the Act, the RRT did not make its judgment upon a proper self direction as to the inferences to be drawn from its rejection of the factual account given by the first respondent. 23 In Australia, as Basten JA recently observed 21, the principles applicable where the jurisdictional fact is a state of satisfaction or opinion are traced back to the use by Latham CJ in R v Connell; Ex parte The Hetton Bellbird Collieries Ltd of the terms "arbitrary, capricious, irrational" as well as "not bona fide" to stigmatise the formation of an opinion upon which a statutory power was enlivened 22. Subsequently, for the Supreme Court of Canada, Iacobucci J spoke of decision making upon an assumption which had no basis in the evidentiary material or which was contrary to the overwhelming weight of that material, and also of decisions based upon a contradiction in the processes by which conclusions were reached or upon the drawing of inferences which were not properly open A decision upon jurisdictional fact which has these characteristics is treated as a failure to exercise jurisdiction 24. There has been a purported exercise of public power in the absence of the necessary jurisdictional fact Commissioner of Police v Ryan (2007) 70 NSWLR 73 at (1944) 69 CLR 407 at 432; [1944] HCA Canada (Director of Investigation and Research) v Southam Inc [1997] 1 SCR 748 at See the authorities collected in Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at [82], 453 [189]; [2001] HCA Aronson and Dyer, Judicial Review of Administrative Action, 2nd ed (2000) at 205, cited in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 at 1176 [59]; 198 ALR 59 at 73; [2003] HCA 30.

12 Gummow ACJ Kiefel J 25 These considerations have added significance where the law in question is made by a legislature of limited powers. Thus, in Australia a jurisdictional fact may also be or include a constitutional fact. An example would be a criterion of liability that required the satisfaction of a non-curial decision maker that a propositus answer the description of a trading or financial corporation formed within the limits of the Commonwealth. If that satisfaction were not examinable on judicial review, the result, as the Australian Communist Party v The Commonwealth 26 teaches, would be that the legislation could rise higher than its constitutional source. These considerations apply in the present case. No doubt, the first respondent being an alien, a Pakistani national, the Act applies to him as a law with respect to that alienage. But the answer to the question posed by ss 36 and 65 as to the application of the definition of "refugee" determines whether in its operation upon the first respondent the Act also is supported as a law with respect to external affairs. 26 In England the distinction between jurisdictional and non-jurisdictional facts has fallen into deep disfavour and broader notions of the scope of judicial review have been developed and applied by the English courts. The submissions for the Minister by the Commonwealth Solicitor-General in significant measure sought to discourage any such development by this Court in applying s 75(v) of the Constitution. 27 In Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam 27 there was some consideration of the difficulties in Australia with the recent English authorities respecting review on the ground of "abuse of power" through the alteration of policy to frustrate unfairly the "legitimate" expectations of the individuals seeking review. No such ground was relied on by the first respondent. Nor does the present case require consideration of a doctrine of proportionality to review the exercise of a discretion where there is lacking an appropriate relationship between ends and means Still less is this the occasion to consider the development in Canada of a doctrine of "substantive review" applied to determinations of law, of fact, and of (1951) 83 CLR 1 at ; [1951] HCA 5. See also Miller v TCN Channel Nine Pty Ltd (1986) 161 CLR 556 at ; [1986] HCA (2003) 214 CLR 1 at 9-10 [28], [68]-[74], 37 [118]; [2003] HCA R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532 at

13 Gummow ACJ Kiefel J mixed law and fact made by administrative tribunals. Of substantive review, the Supreme Court of Canada recently said 29 : 9. "The current approach to judicial review involves three standards of review, which range from correctness, where no deference is shown, to patent unreasonableness, which is most deferential to the decision maker, the standard of reasonableness simpliciter lying, theoretically, in the middle. In our view, it is necessary to reconsider both the number and definitions of the various standards of review, and the analytical process employed to determine which standard applies in a given situation. We conclude that there ought to be two standards of review correctness and reasonableness." It may, however, be noted that the Supreme Court was not dealing with a system of judicial review created by statute, such as a counterpart of the ADJR Act. Rather, in Canada "the inherent power of superior courts to review administrative action and ensure that it does not exceed its jurisdiction stems from the judicature provisions in ss 96 to 101 of the Constitution Act 1867" The determination of this appeal turns on the application of the doctrine of jurisdictional error, implicit in s 75(v) of the Constitution, to a legislative criterion expressed in terms of the satisfaction of the RRT. 30 Writing after the decision in Tameside, Professor Craig said 31 : "The general approach now is for the courts to require that a minister produce reasonable grounds for his action, even where the jurisdictional fact is subjectively framed." 31 In Television Capricornia Pty Ltd v Australian Broadcasting Tribunal 32, Wilcox J carefully, and with respect correctly, distinguished a "no evidence" ground respecting the existence of a jurisdictional fact, from the more debatable question (which does not arise in this appeal, as counsel for the first respondent 29 Dunsmuir v New Brunswick [2008] 1 SCR 190 at Dunsmuir v New Brunswick [2008] 1 SCR 190 at Administrative Law, 3rd ed (1994) at 370. See also the authorities collected by Gleeson CJ, Gummow, Kirby and Hayne JJ in Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135 at 150 [34]; [2000] HCA (1986) 13 FCR 511 at 514,

14 Gummow ACJ Kiefel J stressed) of defective fact finding as an independent ground of judicial review, or as indicative of an "error of law" within the meaning of the ADJR Act. The importance of reasons 32 Professor Wade wrote that a system of judicial review which cannot cope with crucial questions of fact necessarily is seriously defective 33. In Australia that deficiency is alleviated by requirements in various laws, notably s 13 of the ADJR Act and its progeny in State legislation 34, for the obtaining of reasons for the decision. Section 430(1) of the Act is such a provision. Its operation in the present dispute is to lay out, more clearly than otherwise would be the case, the field upon which these operate the considerations mentioned, for example, by Lord Wilberforce in Tameside and Latham CJ in Connell. 33 Section 430(1) obliged the RRT, in making its decision, to prepare a written statement setting out its decision (par (a)), its reasons for the decision (par (b)), the findings on any material questions of fact (par (c)) and referring to the evidence or any other material on which those findings of fact were based (par (d)). The obligation is to set out the findings on what the RRT considers to be material questions of fact; this focuses upon the thought processes of the decision maker, and may disclose jurisdictional error Many of the leading authorities in this Court in which administrative decisions were challenged concerned legislative regimes in which there was no counterpart of s 430 of the Act. The decisions at stake in those cases presented an inscrutable face. Thus, in Avon Downs Pty Ltd v Federal Commissioner of Taxation 36, s 80(5) of the Income Tax Assessment Act 1936 (Cth) required the taxpayer company, if prior losses were to be allowed deductions, to satisfy the Commissioner of the state of its voting power on the last day of the year of income. No reasons were given by the Commissioner for the disallowance of the taxpayer's objections to its assessment. In that context Dixon J explained 37 the circumstances in which the conclusion of the Commissioner was liable to review 33 Administrative Law, 7th ed (1994) at See Aronson and Dyer, Judicial Review of Administrative Action, 4th ed (2009) Minister for Immigration v Yusuf (2001) 206 CLR 323 at [10], 338 [34], 346 [68]; [2001] HCA (1949) 78 CLR 353; [1949] HCA (1949) 78 CLR 353 at

15 Gummow ACJ Kiefel J by the court. Likewise, the inadequacy of the material before the decision maker may support an inference that the decision maker has applied the wrong test or was not "in reality" satisfied of the requisite matters 38 or from the absence of reasons the court may infer the absence of any good reason On the other hand, of provisions such as s 430, it was said in Wu Shan Liang 40 that the reasons are meant to inform and, upon judicial review, are not to be scrutinised in an over-zealous fashion. In that case, where the refugee status of the respondent was at stake, the Court said of the use by the decision maker of the term "speculative" 41 : 11. "The word 'speculative' in the context in which it appears need not amount to a denial of the delegates' function of assessment of future chances of persecution. Rather, the word might equally have been used to refer to the probative force of the material before the delegate." 36 Here the RRT did give reasons in response to the requirement of s 430(1). The issue is whether, having regard to those reasons and without the necessity for a process of divination undertaken in the earlier authorities dealing with other legislation, the RRT fell into jurisdictional error to attract the remedy provided by the Federal Court. SGLB 37 The ascertainment of the relevant jurisdictional error, if there be one, must fix upon the treatment of the requirement mandated by s 65 of the Act that the decision maker be "satisfied" that there is "satisfied" the criterion that the applicant is one to whom the decision maker is satisfied under s 36(2)(a) that Australia owes protection obligations. 38 In dealing with that question two distinctions must be made. They are foreshadowed in what has been said earlier in these reasons. The first is that the first respondent does not assert any general ground of jurisdictional error of the 38 R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 120; [1953] HCA Public Service Board of NSW v Osmond (1986) 159 CLR 656 at ; [1986] HCA (1996) 185 CLR (1996) 185 CLR 259 at 277.

16 Gummow ACJ Kiefel J kind disfavoured by Mason CJ 42 where there were alleged deficiencies in what might be called "intra-mural" fact finding by the decision maker in the course of the exercise of the jurisdiction to make a decision. The apprehensions respecting "merits review" assume that there was jurisdiction to embark upon determination of the merits. But the same degree of caution as to the scope of judicial review does not apply when the issue is whether the jurisdictional threshold has been crossed. There the imperatives are the separation of powers considerations to which Justice Selway referred. 39 The second distinction concerns attacks upon the exercises of discretionary power which are said to be unreasonable in the sense attributed to Associated Provincial Pictures Houses Ltd v Wednesbury Corporation 43. The concern here is with abuse of power in the exercise of discretion, again on the assumption that the occasion for the exercise of discretion had arisen upon the existence of any necessary jurisdictional facts 44. Confusion of thought, with apprehension of intrusive interference with administrative decisions by judicial review 45 will be avoided if the distinction between jurisdictional fact and other facts then taken into account in discretionary decision making is kept in view. 40 It was against this background that, when considering s 65 of the Act in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB 46, Gummow and Hayne JJ said: 12. "The satisfaction of the Minister is a condition precedent to the discharge of the obligation to grant or refuse to grant the visa, and is a 'jurisdictional fact' or criterion upon which the exercise of that authority is conditioned 47. The delegate was in the same position as would have been the Minister 42 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at ; [1990] HCA [1948] 1 KB Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 at [20], [67]-[69], 1194 [174]; 198 ALR 59 at 64, 75-76, See, in particular, the remarks of Brennan J in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at (2004) 78 ALJR 992 at 998 [37]-[38]; 207 ALR 12 at 20-21; [2004] HCA Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at 609 [183]; [2002] HCA 54.

17 Gummow ACJ Kiefel J 13. (s 496) and the Tribunal exercised all the powers and discretions conferred on the decision-maker (s 415). The satisfaction of the criterion that the applicant is a non-citizen to whom Australia has the relevant protection obligations may include consideration of factual matters but the critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds 48. If the decision did display these defects, it will be no answer that the determination was reached in good faith." However, it should be remarked that what is characterized as the "critical question" should not receive an affirmative answer that is lightly given. It may be noted that the outcome in SGLB and in Applicant S20/2002 was to deny the presence of jurisdictional error. This reflected the approach upon judicial review earlier expressed in Wu Shan Liang to which earlier reference has been made. 41 Similar reasoning to that found in SGLB has been applied by the Full Court of the Federal Court in WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs 49, which in turn was followed in authorities including the decision of Gordon J in SZLGP v Minister for Immigration and Citizenship 50, upon which Moore J particularly relied in the present case. 42 The Minister submitted that there was no occasion for a redetermination by the RRT, as ordered by the Federal Court. This was because the above line of authority should be disowned, essentially for the apprehended fear of "merits review". But, as indicated in these reasons, that submission should be rejected. It gives insufficient weight to the importance of s 75(v) of the Constitution in ensuring that the legislative expression of jurisdictional facts in terms of satisfaction or opinion of a decision maker does not rise higher than its source. Conclusions 43 The RRT fixed upon two matters as "inconsistent" with the first respondent's claimed fear of persecution and founding its refusal to accept "that the [first respondent] had engaged in homosexual activities in the UAE". 48 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 at 1172 [37], 1175 [52], 1194 [173]; cf at 1168 [9]; 198 ALR 59 at 67, 71, 98; cf at (2004) 80 ALD 568 at [2008] FCA 1198.

18 Gummow ACJ Kiefel J The first was his visit to Pakistan for three weeks in May-June 2007, to spend time with his children and to finalise his relations with his wife, before he returned to the UAE and then to Australia. The RRT reasoned that if genuinely fearful of serious harm upon disclosure in Pakistan of his homosexuality, the first respondent would not have travelled there even for a short time. 45 The second matter was that the first respondent had failed to seek protection when he visited the United Kingdom in His evidence was that, given what were then his favourable personal circumstances in the UAE, there was no reason to seek protection in the UK. The RRT said that the first respondent had been "unable to explain [to its satisfaction] why he preferred at the time to hide his homosexuality for years to come rather than to seek protection". 46 This process of reasoning is based on two assumptions: that an applicant for a protection visa would not return, albeit briefly, to a country in which persecution is feared, and that a claimant fearful of persecution would seek asylum elsewhere at the first available opportunity. It was these assumptions which led the RRT to the conclusion that the conduct of the first respondent was inconsistent with his claim to fear persecution. The assumptions may be logical or rational if the person claims to fear persecution on the grounds of a physical feature such as race or some other feature that is known or likely to be apparent to others within the country. However, the same cannot be assumed where the claimed fear is based on such grounds as those of sexual identity or political opinion or religious belief in the absence of circumstances that may indicate otherwise. 47 The reasoning of the RRT appears to have proceeded on the basis that a person outside Pakistan but with a real fear of persecution as a homosexual in Pakistan would not go there at all and would seek protection as a refugee at the first opportunity. Reasoning of this nature insufficiently appreciates a point made by Gummow and Hayne JJ in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs 51. This is that in considering whether a particular applicant for a protection visa has a well-founded fear of persecution by reasons of membership of a social group identified in terms of sexual identity: "Sexual identity is not to be understood in this context as confined to engaging in particular sexual acts or, indeed, to any particular forms of physical conduct. It may, and often will, extend to many aspects of human relationships and activity." 51 (2003) 216 CLR 473 at [81] per Gummow and Hayne JJ.

19 Gummow ACJ Kiefel J 48 Further, counsel for the first respondent correctly emphasised that there is essentially an individual character to "membership" of a particular social group. As McHugh and Kirby JJ put it in Appellant S395/ , a claimant to refugee status is asserting an individual right not merely undifferentiated membership of a group, and as Gummow and Hayne JJ put it 53 : 15. "The central question in any particular case is whether there is a well-founded fear of persecution. That requires examination of how this applicant may be treated if he or she returns to the country of nationality. Processes of classification may obscure the essentially individual and fact-specific inquiry which must be made 54." (original emphasis) 49 So it is that, for example, a person may engage in sexual activity (and, indeed, in religious worship or political activity) in one country rather than another without necessarily denying a claim to protection under the Convention. 50 With respect to the first matter relied upon by the RRT, the return to Pakistan in May-June 2007, the evidence of the first respondent was that he had kept a low profile during the visit to avoid trouble with anyone. The social group of which he asserted membership had the characteristic that membership would not be perceived unless disclosed. The RRT acted on an assumption that if the first respondent had the sexual identity he claimed there was a very real prospect that this would be disclosed by some means during his short visit, that he would have had that apprehension and would not have visited his family before going to Australia. 51 The RRT gave no attention to the question of how it could have become known to the family of the first respondent or to anyone else in Pakistan that he was a homosexual, and made no findings upon it. The absence of the logical connection between the evidence and the reasons of the RRT's decision became apparent when the RRT assumed that a homosexual would be fearful of returning to Pakistan without there being any basis in the material to found this assumption or to counter the possibility that the sexuality of such a person could be concealed from others in the short period of return to the country. Indeed, the first respondent said that he had made other short visits to his family in Pakistan 52 (2003) 216 CLR 473 at 495 [59]. 53 (2003) 216 CLR 473 at 500 [78]. 54 R (Sivakumar) v Secretary of State for the Home Department [2003] 1 WLR 840 at 841 [2]; [2003] 2 All ER 1097 at 1099, per Lord Bingham of Cornhill; at 843 [7]; 1101, per Lord Steyn; at 854 [42]; 1112, per Lord Rodger of Earlsferry.

20 Gummow ACJ Kiefel J from the UAE before that of May-June These visits had not led to any adverse disclosure. 52 With respect to the second matter, the visit to the United Kingdom in 2006, there was nothing before the RRT which provided any ground for rejecting the explanation given for failure to seek protection at that time. The desire of the first respondent to continue to reside in the UAE, where "at the time he did not have any problems" and had "a good relationship", instead of seeking to reside in a country far removed from his then good relationship, says nothing as to the credibility of the first respondent's claim to fear persecution in Pakistan. It should also be noted that the RRT did not express its conclusion upon any view as to the manner in which the first respondent had given his evidence before the RRT. Rather it gave a lengthy summary of his evidence and then reasoned from the two deficiencies it saw in his account. 53 To decide by reasoning from the circumstances of the visits to the United Kingdom and Pakistan that the first respondent was not to be believed in his account of the life he had led while residing in the UAE was to make a critical finding by inference not supported on logical grounds. The finding was critical because from it the RRT concluded that the first respondent was not a member of the social group in question and could not have the necessary well-founded fear of persecution. 54 The Federal Court was correct to quash the decision and to order a redetermination by the RRT. Orders 55 The appeal should be dismissed with costs. 16.

21 Heydon J 56 HEYDON J. I adopt the statement of facts made and the abbreviations employed by Crennan and Bell JJ. 57 The question is whether the Federal Court was wrong to respond to a point taken for the first time in that court by characterising the reasoning of the Tribunal as having "simply no basis", as being "completely unsustainable as a piece of logical analysis", and as "based squarely on an illogical process of reasoning". 58 The conclusion urged by the Solicitor-General of the Commonwealth on behalf of the appellant is that the Tribunal's fact-finding was not, on any view, open to these characterisations. That submission is correct, substantially for the reasons that he advanced. 59 It is desirable to consider the nature of the persecution that the first respondent claimed to fear, and the reactions of the Tribunal member to the first respondent's claims in respects other than the two particular issues on which the appeal turns, before going to those two issues. Persecution 60 The nature of the persecution. The first respondent contended that he had good explanations for deciding to return to Pakistan for three weeks in 2007 and for not seeking asylum in the United Kingdom in In assessing those explanations it is important to bear in mind what his claim for a Protection (Class XA) Visa entailed. That is because the greater the harm he believed would flow from people in Pakistan coming to know of his conduct, the less likely it is that he would return to Pakistan or fail to seek asylum in the United Kingdom. 61 The first respondent claimed to have a well-founded fear of being persecuted for reasons of membership of a particular social group. Section 91R(1) of the Act provides that persecution must involve "serious harm" to the first respondent and "systematic and discriminatory conduct". Section 91R(2) provides: 17. "Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph: (a) a threat to the person's life or liberty; (b) significant physical harassment of the person; (c) significant physical ill-treatment of the person;

22 Heydon J 18. (d) significant economic hardship that threatens the person's capacity to subsist; (e) denial of access to basic services, where the denial threatens the person's capacity to subsist; (f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist." 62 While s 91R(2) does not provide an exhaustive definition of "serious harm", the circumstances it sets out do powerfully illustrate the gravity of the kinds of harm which that expression captures. 63 The persecution claimed by the first respondent: the Department. The first respondent's solicitor informed the appellant's Department in writing that in Pakistan homosexuality was punishable by a seven year jail sentence, that society discriminated against homosexuals to an extreme degree, that homosexuality was a matter of shame and embarrassment for the person involved and his or her family, and that the Government of Pakistan did not provide protection to homosexuals. 64 The persecution claimed by the first respondent: the Tribunal. Before the Tribunal, in oral evidence, the first respondent said that the only harm he feared was that, if he returned to Pakistan and his family came to know about the way of life he was living in Australia, he, his daughters and his family (including his brothers and sisters) would feel ashamed and they would all "die of shame". 65 The persecution claimed by the first respondent: the Federal Magistrates Court. Before the Federal Magistrates Court, the first respondent contended, in writing, that if he returned to Pakistan he could not survive there, that there are severe punishments there for the practice of homosexuality, and that persons accused of that practice could be put to death by stoning. He also contended that it was impossible to live as a homosexual in Pakistan because homosexual conduct was deemed to be very shameful and those practising it were boycotted in all fields of life: he would die unless he were allowed to lead a homosexual lifestyle. These contentions were put somewhat more strongly than they had been earlier, but, accepting them as sincere, it may be inferred from them and from the earlier forms in which he put his claim that the first respondent had an extremely strong fear of, antipathy against and revulsion to the conditions in Pakistan of which he spoke The Solicitor-General in passing questioned whether these conditions amounted to persecution. In another case that question may have to be examined. But in this appeal it can be assumed that those conditions did amount to persecution.

23 Heydon J 66 Bases for the Tribunal's ultimate conclusion. The ultimate conclusion at which the Tribunal member arrived was that there was no real chance that, if the first respondent were to return to Pakistan, he would face persecution in the reasonably foreseeable future. The reasons for arriving at that ultimate conclusion may be divided into categories. The first two categories are related to the Tribunal's reasoning about the first respondent's visits to Pakistan in 2007 and the United Kingdom in But they were not the only categories into which the Tribunal's reasoning fell. There were four others. 67 The third category related to the Tribunal's inability to accept that the first respondent had engaged in homosexual activities in Australia in the seven and a half months between his arrival and the oral hearing in the Tribunal. The first respondent claimed that, because of the need to be cautious about disease, he had limited those activities to a one night stand with a person whose name he did not ask. But he also claimed to have searched websites with a view to establishing relationships. The Tribunal said: 19. "The Tribunal finds the [first respondent's] explanation about his very limited involvement in homosexual activities in Australia to be implausible as, despite the apparent fear of disease, the [first respondent] claimed to have engaged in a relationship with an unknown partner. The Tribunal also finds that visiting websites without indicating one's preferences does not indicate that the [first respondent] was looking for same sex partners or that he would be perceived as having done that. The Tribunal does not accept that the [first respondent] had engaged in homosexual activities in Australia." 68 The fourth category related to the first respondent's claim to have engaged in homosexual activities at school. The Tribunal did not accept that this conduct, if it took place, was indicative of the first respondent's desire to repeat it as an adult. 69 The fifth category concerned newspaper articles and reports which the first respondent provided to the Tribunal about homosexuality in Islam. The Tribunal said: "[t]hese are not specifically about the [first respondent] and the Tribunal does not view these as supporting the [first respondent's] claims that he is a homosexual." 70 The sixth category concerned a report from a doctor. Apart from the Tribunal member's reference to some inconsequential spelling errors, she gave the report no weight because its conclusions were based primarily on the history which the first respondent had given. 71 In this Court the first respondent made no complaint about the Tribunal's reasoning in relation to the third, fourth, fifth and sixth categories. While the Tribunal member's specific comments in relation to the fourth, fifth and sixth

24 Heydon J categories were not critical of the first respondent's credibility, this was not the case for her comments in relation to the third category. She completely disbelieved him. 72 It is necessary now to turn to the two parts of the Tribunal's reasoning which the Federal Court attacked. The visit to Pakistan in The key part of the Tribunal's reasoning about the first respondent's visit to Pakistan in 2007 is quoted by Crennan and Bell JJ 56. So is the material part of the Federal Court's reasoning The reasoning of the Tribunal member may be summarised as follows. Although she did not say so in terms, it is plain that she selected as her major premise the proposition that persons who claim to fear serious harm arising from their conduct if it becomes known in their country of origin including death through shame to themselves, their wives, their daughters, their brothers and their sisters are likely to have so strong a revulsion to the conditions and dangers in their country of origin which made these outcomes likely that they will not return to it. The minor premise was that the first respondent did return to his country of origin. The conclusion was that he probably did not in fact fear serious harm of the kind claimed. The Tribunal's reasoning rested on the idea that there was an inconsistency between the first respondent fearing certain perils if his application for a protection visa were rejected and he returned to Pakistan, and his failure to fear those perils when he went there voluntarily in The Federal Court's criticism was that the Tribunal's reasoning did not explain how the first respondent's conduct would have become known in Pakistan. The answer to the criticism is that the case put by the first respondent makes it necessary to assume that it will become known. 76 It was for the first respondent to establish his claim, not for the Tribunal to disprove it. He had the opportunity to establish his claim without being trammelled by the requirements of the rules of evidence. He invited the Tribunal to reach a conclusion based on what he said were the probabilities of ordinary life in Pakistan. A necessary integer of success in the first respondent's claim of persecution was the proposition that it would be discovered that the first respondent was a practising homosexual. The first respondent did not explain in support of his own case how that proposition would be made good, any more See below at [108]-[109]. 57 See below at [112].

25 Heydon J than he explained in answer to the Tribunal's questioning why the proposition was not true in relation to his visit in However, as the Tribunal was asked to accept the proposition in order to uphold the first respondent's claim that he was in peril of persecution in Pakistan, it was not illogical for the Tribunal also to accept the proposition in order to test the first respondent's apparent position that his visit to Pakistan in 2007 carried no peril of persecution. 77 The Federal Court reasoned that the illogicality lay in assuming that others would discover that the first respondent was a practising homosexual during "the brief period of his visit". But for the Tribunal to assume, in the first respondent's favour, that if he returned to Pakistan for an indefinite period that fact would become known is not inconsistent with assuming that it would become known during a briefer period. It cannot be said that there is any illogicality. And it cannot be said, as the Federal Court did, that there "was simply no basis" for the Tribunal's conclusion. If the only relevant factor were the duration of the visit to Pakistan, the longer the period of the visit to Pakistan, the more likely it was that the fact would become known. The shorter the period, the less likely it was that the fact would become known. But that does not establish that there was no basis for the Tribunal's conclusion. 78 The issue was one on which minds might differ. The Federal Court evidently operated on one assumption or conclusion about that issue. The Tribunal operated on another. The difference was one of degree, impression and empirical judgment. It did not stem from an error in logic by the Tribunal member. The difference could not be said to reveal an absence of any basis whatsoever for her conclusion. 79 There is a further difficulty in relation to the Federal Court's attacks on the reasoning of the Tribunal member. The means by which the first respondent's family or anyone else in Pakistan would discover facts about the first respondent which he claimed he wished to conceal were not limited to those flowing from his physical presence in Pakistan. If the facts were discovered, the impact would be felt in Pakistan. But the facts could be discovered independently of the first respondent's presence in Pakistan. The facts could be discovered, for example, through messages out of the United Arab Emirates via correspondence, telephone or other electronic means, or through reports of Pakistanis coming home from the United Arab Emirates. That diminishes the significance of the length of the first respondent's trip: for even if its brevity reduced the chance of the facts being discovered from the first respondent's mere presence in Pakistan, it did not reduce the chance of persecution taking place as a result of communications during the previous 20 months. 80 On one reading of the Tribunal's reasons, it was dealing only with the three week visit to Pakistan in That was the reading advanced by the first 21.